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date: 26 June 2019

Abstract and Keywords

This chapter reviews the key jurisprudential developments in relation to the division of powers in Canada, exploring how the shared jurisdiction over the “environment” created by sections 91 and 92 of the Constitution has historically shaped and continues to shape environmental law and policy. In addition to this federal-provincial struggle, the chapter considers the current trend towards local regulation of environmental matters according to the principle of “subsidiarity”, and the growing recognition of the “inherent jurisdiction” of Indigenous peoples. The contemporary dynamics are explored through two critical policy case studies highlighting barriers to environmental justice: safe drinking water on reserves, and climate change mitigation. The review reveals that Canada’s constitutional framework, although not solely responsible, has contributed to our collective failure to achieve a coordinated and effective set of environmental laws and policies, which translates to unequal distribution of environmental benefits and burdens on the ground.

Keywords: environmental law, federalism, division of powers, POGG, environmental justice, inherent jurisdiction, constitutional litigation

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